DIGIACOMO v. DGMB CASINO, LLC
Filing
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OPINION. Signed by Judge Noel L. Hillman on 4/15/2019. (rtm, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ROBERT DIGIACOMO,
Plaintiff,
v.
Civil No. 18-1649 (NLH/KMW)
DGMB CASINO, LLC d/b/a
ROSORTS CASINO HOTEL and DGMB
CASINO HOLDING, LLC, d/b/a
RESORTS CASINO HOTEL,
OPINION
Defendants.
APPEARANCES:
ROSS M. O’NEILL
COOPER LEVENSON PA
1125 ATLANTIC AVENUE
ATLANTIC CITY, NJ 08401
Attorney for Defendants.
HILLMAN, District Judge
This case concerns a common law negligence claim stemming
from injuries sustained by Plaintiff Robert DiGiacomo who
alleged he slipped and fell on ice in Defendants’ parking lot.
Presently before the Court is Defendants’ Motion to Dismiss
Pursuant to Federal Rule of Civil Procedure 41(b) (“Motion to
Dismiss”).
This Court will grant Defendants’ Motion to Dismiss
for the reasons stated below.
BACKGROUND
This Court takes its facts from Plaintiff’s complaint.
On
February 13, 2016, Plaintiff claims he visited Defendants’
premises at approximately 2:45 PM.
Plaintiff parked his car in
the self-park lot and was walking from his car to the front
entrance of the casino when he slipped and fell on ice.
Plaintiff alleges that Defendants knew or should have known of
this condition and that they did not place appropriate warning
signs or clean up the allegedly hazardous condition.
On February 6, 2018, Plaintiff filed a complaint in this
Court.
2018.
Plaintiff filed an amended complaint on February 23,
The complaint alleged one count of common law negligence
against Defendants, DGMB Casino Holding and DGMB Casino, LLC,
both doing business as Resorts Casino Hotel.
On March 23, 2018,
Defendants answered Plaintiff’s Amended Complaint.
Some discovery ensued thereafter.
According to Defendants,
the parties exchanged limited written discovery by August 9,
2018.
But, thereafter, Plaintiff’s previously scheduled
deposition was cancelled and the discovery deadline was thus
extended to November 30, 2018.
(ECF No. 13.)
Even with the
deadline extension, the parties were unable to agree to a time
to depose Plaintiff.
The reason: Plaintiff’s counsel had been
unable to locate or communicate with Plaintiff.
were stayed on November 27, 2018.
All deadlines
(ECF No. 14.)
A status conference was held before Magistrate Judge Karen
M. Williams on January 4, 2019.
Plaintiff’s counsel advised the
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Court that he had been unable to locate or communicate with his
client.
On January 11, 2019, counsel for Plaintiff filed a
letter with the Court memorializing the relevant facts.
No. 16.)
(ECF
As a result, this Court entered an Order to Show Cause
on February 26, 2019, setting forth a briefing schedule and
directing Defendants to file a motion to dismiss pursuant to
Federal Rule of Civil Procedure 41(b) addressing the Poulis
factors.
On March 15, 2019 Defendants filed their Motion to Dismiss
Plaintiff’s Amended Complaint pursuant to Rule 41(b).
No
response was filed by Plaintiff.
ANALYSIS
A.
Subject Matter Jurisdiction
This Court has jurisdiction over this case pursuant to 28
U.S.C. § 1332.
B.
Rule 41(b) Standard
Pursuant to Federal Rule of Civil Procedure 41(b), the
Court may dismiss an action when a plaintiff fails to prosecute
his case or comply with the court rules or a court order.
FED.
R. CIV. P. 41(b).
Generally, when deciding whether to dismiss a case for a
plaintiff’s failure to prosecute, the Court must consider the
six factors set forth in Poulis v. State Farm Fire and Casualty
Co., 747 F.2d 863, 868 (3d Cir. 1984).
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These factors are:
(1) the extent of the party’s personal responsibility;
(2) the prejudice to the adversary caused by the failure
to meet scheduling orders and respond to discovery; (3)
a history of dilatoriness; (4) whether the conduct of
the party or the attorney was willful or in bad faith;
(5) the effectiveness of sanctions other than dismissal,
which entails an analysis of alternative sanctions; and
(6) the meritoriousness of the claim or defense.
Poulis, 747 F.2d at 868.
The Court notes that “[n]ot all of
these factors need to be met for a district court to find
dismissal is warranted.”
Cir. 1988).
Hicks v. Feeney, 850 F.2d 152, 156 (3d
Thus, the Court will consider these factors in
turn.
C.
Rule 41(b) Motion
a. The Extent of Plaintiff’s Personal Responsibility
The Court finds this factor favors dismissal.
Taking
Plaintiff’s counsel’s representations as true, Plaintiff’s
counsel is not personally responsible for the failure to
prosecute this action.
(See ECF No. 16.)
Since August 2018,
Plaintiff’s counsel has been diligent in attempting to locate
Plaintiff so that litigation could continue, but has been
unsuccessful.
(See ECF No. 16.)
But, Plaintiff does bear personal responsibility for the
lack of prosecution of this action since August 2018.
Plaintiff
is necessary to continue this action, but has not returned his
counsel’s telephone calls or correspondence.
This action cannot
proceed without a deposition of Plaintiff and without Plaintiff
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guiding, through his counsel, the course of his side of the
litigation.
For that reason, this Court finds this factor
favors dismissal.
b. The Prejudice to Defendants Caused by the Failure to
Meet Scheduling Orders and Respond to Discovery
The Court finds this factor also supports dismissal.
Generally, “[e]vidence of prejudice to an adversary . . .
‘bear[s] substantial weight in support of dismissal.’”
Adams v.
Trs. of the N.J. Brewery Emps.’ Pension Tr. Fund, 29 F.3d 863,
873-74 (3d Cir. 1994) (quoting Scarborough v. Eubanks, 747 F.2d
871, 876 (3d Cir. 1984)).
Generally, prejudice includes “‘the
burden imposed by impeding a party’s ability to prepare
effectively a full and complete trial strategy.’”
Briscoe v.
Klaus, 538 F.3d 252, 259 (3d Cir. 2008) (quoting Ware v. Rodale
Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003)).
Examples of
this type of prejudice include the loss of evidence, “‘the
inevitable dimming of witnesses’ memories,’” and burdens or
costs imposed upon the discovering party.
Id. (citing Adams, 29
F.3d at 874).
Defendants have been unable to depose or conduct a medical
examination of Plaintiff nor have they been able to request
appropriate medical records from his medical providers.
Defendants have complied with the discovery orders in this case
and have provided written discovery responses and allowed
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Plaintiff’s counsel to conduct a site inspection.
Plaintiff
also provided written discovery responses prior to his
disappearance.
Obviously, Plaintiff’s disappearance is the root of the
lack of continuing discovery in this case.
Plaintiff has thus
not honored discovery deadlines set by the Court.
There is
clear prejudice here, including Defendants inability to prepare
their case, test Plaintiff’s theory, and their obligation to
continue to litigate this case in the absence of Plaintiff.
This factor strongly favors dismissal.
c. The History of Dilatoriness
This factor also favors dismissal.
“Extensive or repeated
delay or delinquency constitutes a history of dilatoriness, such
as consistent non-response to interrogatories, or consistent
tardiness in complying with court orders.”
874 (citing Poulis, 747 F.2d at 868).
Adams, 29 F.3d at
This Court finds that
Plaintiffs’ counsel have not shown a history of dilatoriness.
However, Plaintiff has shown this type of history.
Regardless
of the reason, Plaintiff has not participated in the case.
Plaintiff’s disappearance meant he could not be produced for his
deposition in November 2018.
(Defs.’ Mot. to Dismiss, Ex. F.)
He continued to be unavailable, thereby missing or extending
multiple deadlines and causing the litigation of this case to
halt.
(See ECF Nos. 13-16.)
This factor supports dismissal.
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d. The Willfulness or Bad Faith of the Conduct of
Plaintiff or Plaintiff’s Counsel
This factor also favors dismissal.
According to
Defendants, Plaintiff’s counsel represented during the January
4, 2019 status conference that he has determined Plaintiff no
longer resides in the same apartment and that he has provided no
forwarding address or any other information by which to contact
him.
(Defs.’ Mot. to Dismiss 6.)
Defendants argue that this
factor should be decided as it was in Chimenti v. Kimber, No.
3:CV-01-0273, 2010 U.S. Dist. LEXIS 66023 (M.D. Pa. July 1,
2010).
This Court finds Defendants’ argument persuasive.
Chimenti
involved a defendant doctor who his counsel believed “left [the
United States] and is living somewhere in the Middle East” and
who counsel had “been unable to contact . . . for a prolonged
period of time despite various attempts . . . .”
Dist. LEXIS 66023, at *4-5.
2010 U.S.
The Court specifically held:
With respect to the issue of dilatoriness, since it was
Doctor Mohadjerin who has voluntarily relocated, perhaps
left the country, without apprising either this Court or
his legal counsel of his current whereabouts or
providing any means by which his attorney could contact
him, a finding of dilatoriness and willful conduct is
warranted.
Id. at *6-7 (emphasis added).
Similarly, here, the Court finds
Plaintiff’s relocation without leaving any method whereby the
Court or his counsel could contact him warrants a finding of
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willful conduct.
Therefore, the Court finds this factor
supports dismissal.
e. The Effectiveness of Sanctions Other than Dismissal
This factor favors dismissal.
Essentially, this factor
requires the Court to “consider the availability of sanctions
alternative to dismissal.”
Poulis, 747 F.2d at 869).
Briscoe, 538 F.3d at 262 (citing
This Court finds instructive the
treatment of this factor in Cooper v. Atlantic County Justice
Facility, No. 15-575 (JBS/JS), 2016 U.S. Dist. LEXIS 3903, at
*7-8 (D.N.J. Jan. 12, 2016).
In that case, the pro se plaintiff
could not be located after he filed his complaint; all mail sent
to him was returned as undeliverable.
Id. at *1-3.
The Court
determined that monetary sanctions, an order to show cause
requiring the plaintiff to state why his case should not be
dismissed, and administrative termination would all be
ineffective.
Id. at *7-8.
Although circumstances are slightly different in this case,
the same reasoning and outcome applies here.
Monetary sanctions
against Plaintiff would be ineffective since he cannot be
located.
Monetary sanctions against his counsel would be
unwarranted because he is not responsible for Plaintiff’s
unwillingness to continue with this litigation.
For similar
reasons, an order to show cause or administrative termination
would be ineffective.
Nothing short of dismissal will solve the
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issue of Plaintiff’s disappearance.
Thus, this factor favors
dismissal.
f. The Meritoriousness of the Claim or Defense
This factor does not favor dismissal.
Under this factor,
the Third Circuit has instructed district courts to “use the
standard for a Rule 12(b)(6) motion to dismiss for failure to
state a claim” to determine meritouriousness of claims and
defenses.
Briscoe, 538 F.3d at 263 (citing Poulis, 747 F.2d at
869-70).
Defendants argue that without further information from
Plaintiff, they are unable to determine the meritoriousness of
his claim or of their possible defenses.
As pleaded, the Court
finds no reason - and Defendants provide no reason – why
Plaintiff’s claim would not pass a Rule 12(b)(6) challenge.
Thus, this factor does not favor dismissal.
On balance, this Court finds the Poulis factors weigh in
favor of dismissal.
Sometime during August 2018, it appears
Plaintiff did not actually wish to continue this litigation and
– despite the best efforts of his counsel – it appears Plaintiff
also does not wish to be found.
Nothing short of dismissal will
alleviate the prejudice caused to Defendants.
will grant Defendants’ Motion to Dismiss.
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Thus, this Court
CONCLUSION
Based on the foregoing reasons, this Court will grant
Defendants’ Motion to Dismiss.
An appropriate Order will be entered.
Date: April 15, 2019
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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